S.B. Deshmukh, J.
1. Heard Shri Choudhary, learned counsel for the appellants and Shri Solao, learned counsel for respondents Nos. 2 and 3. Respondents No. 1 and 4 are duly served, however, are absent.
2. By the consent of the parties, this appeal is being taken up for final hearing at this stage.
3. Few facts, in brief, are noted as under :
The appellants are the original plaintiffs in Special Civil Suit No. 174 of 1996, filed in the Court of the learned Civil Judge, Senior Division, Bhandara, against the respondents-original defendants. It is alleged by the appellants that one Dhanraj Watuji Gaidhane, was the husband of appellant No. 1 - Pramila and father of appellants No. 2 and 3. According to appellant No. 1, marriage between herself and Dhanraj took place at Wardha, somewhere in the year 1982. The appellants have stated in the plaint that Dhanraj Gaidhane died on 11-6-1994 in a fatal accident. The plaintiffs have also alleged in the plaint that there were two Insurance policies, details of which are given in the plaint, taken out by the deceased - Dhanraj during his life time. The appellants have further alleged that an amount of Rs. 3,09,109/- is payable by the Insurance Company i.e. respondent No. 1 under these policies and out of this amount, respondent No. 2 has already received an amount of Rs. 63,749/- from respondent No. 1. The appellant No. 1 has stated in the suit that despite her request, the amount under the insurance policies has not been paid to her by respondent No. 1. The appellants, therefore, have prayed for a decree of Rs. 3.09,109/- against the respondents, jointly and severally along with the interest. The point in short, for determination in the suit is regarding the right of the appellants to get the amount of Rs. 3,09,109/- under policies.
4. In response to the suit, written statement came to be filed by respondent No. 1 as well as respondents No. 2, 3 and 4. Respondent No. 2 is the nephew of the deceased Dhanraj, respondent No. 3 is the mother of the deceased Dhanraj and respondent No. 4 is the widow of the deceased Dhanraj. On the basis of the contentions raised by the respondents in the written statement, issues have been framed by the learned Civil Judge, Senior Division, Bhandara. I have seen the issues. There are about five issues framed by the learned Civil Judge, Senior Division, Bhandara. Issue No. 1 is regarding the entitlement of the plaintiffs to receive the amount under the policies. Issue No. 2 is regarding the entitlement of respondent No. 4 to get the entire amount of policies. Issue No. 3 cast burden on respondent No. 1 in respect of nomination in favour of the plaintiffs. Issue No. 4 is regarding the obligation of respondent No. 1 - Insurance Company to make payment to the nominee only.
5. This Court, under Section 96 of the Civil Procedure Code, is dealing with this matter being the First Appeal. This being the first appellate Court, facts and questions of law are open to be agitated before this Court. This Court is required to frame points for determination according to the provisions of relevant Order 41, Rule 31 of the Civil Procedure Code and record the findings. However, looking to the judgment delivered by the learned Civil Judge, Senior Division, Bhandara, answering Issue Nos. 1, 2, 3 and 4 as 'does not survive', I am not inclined to frame points for determination, as required to be framed. It is not necessary for this Court to record any finding on these issues since there is no finding recorded by the trial Court on these issues. One more important aspect is that this Court is remanding the matter, looking to the judgment of the trial Court and, therefore, also I do not wish to record any finding on Issues Nos. 1 to 4. Therefore, only one point is being framed for determination :
POINTS FOR DETERMINATION FINDINGS
'Whether the learned Civil Judge, Senior Division, No
Bhandara, is justified in holding that the plaintiffs are
required to file an application for obtaining Succession
Certificate?'
REASONS
6. The plaintiffs are alleging that they are legal heirs of deceased Dhanraj and entitled to receive the claim amount of the three Life Insurance Policies from defendant No. 1 - Life Insurance Corporation. The plaintiffs have also alleged that the amount of Rs. 63,749/- has been received illegally by defendant No. 2 from defendant No. 1. The plaintiffs are, therefore, seeking recovery of Rs. 3,09,109/- from the defendants along with interest. The written statement filed on behalf of the defendants, if considered, relationship in between the deceased Dhanraj and plaintiffs seems to be denied and defendant No. 2 has claimed nomination regarding one of the policy. The plea of defendant No. 1 - Life Insurance Corporation is regarding nomination under the various insurance policies in favour of the concerned parties. The bone of contention of defendant No. 2 is that he being the nominee, is entitled to receive the amount from defendant No. 1 - Insurance Company. Defendant No. 1 Insurance Company is also saying in its written statement that the amount of claim can be disbursed to the nominee. The learned Civil Judge, Senior Division, did not record any finding on issues No. 1 to 4 as stated above as according to the learned Judge, the issues do not survive for consideration. The learned Judge was of the opinion that though the plaintiffs can maintain this suit, the remedy of filing application for succession certificate is the efficacious remedy. The learned Judge also opined that the provision of Indian Succession Act, 1925, to grant relief to the plaintiff cannot be ignored and not to be stalled and therefore, held that the suit is not tenable and proceeded to dismiss the said suit. The finding recorded by the learned Civil Judge, Senior Division, Bhandara, is per se illegal.
7. Section 9 of the Civil Procedure Code provides that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The suits generally fall under two categories : That is (i) those which are of a civil nature, and (ii) those which are not of a civil nature. The suits falling under the first category only can be entertained by the Civil Courts. The explanation (1) clarifies as to what is a suit of a civil nature.
(i) If the principal or only question raised in the suit is a caste question or a question relating to a caste or for religious rites or ceremonies, the suit is not of a civil nature for it deals not with the rights of the citizens but with the matters which are purely social or religious.
(ii) On the other hand, a caste question or question relating to religious rites or ceremonies is not, the principal question in the suit, but is merely subsidiary or a consequential or an incidental one and the principal question is one relating to property or office or any other civil rights.
(iii) The principal question which is of a civil nature cannot be decided without determining the question relating to a caste or religious rites or ceremonies. The court can decide the question as to caste, religious rites or ceremonies to enable it to decide any of it, to adjudicate the principal question.
In substance, it can be said that a suit is of a civil nature, if the principal question therein relates to a civil right. I have examined the nature of the suit filed by the plaintiffs. On examination, it appears that it is a suit seeking recovery of the money from the defendants with the contention that the plaintiffs are the legal heirs of deceased Dhanraj and are entitled to receive the claim amount from the Insurance Company. The plaintiffs have also agitated payment of Rs. 63,749/- made by defendant No. 1 to the nominee that is defendant No. 2 and claimed recovery thereof. Since defendant No. 1 Insurance Company is avoiding the payment, plaintiffs have also claimed interest. The nature of the suit can be said to be of a civil suit. In this view of the matter, suit filed by the plaintiffs is very well maintainable in the Civil Court.
8. There is no case of exclusion of the jurisdiction of the Civil Court in the facts and circumstances of the present suit. There is also no case of bar of filing or entertaining a civil suit of such type as pointed out on behalf of the learned counsel for the respondents. The jurisdiction of the Courts to try all suits of civil nature is very expansive as is evident from the plain language of Section 9 of the Civil Procedure Code. It is only where cognizance of a specified type of suit is barred by a statute expressly or impliedly that the jurisdiction of the Civil Court would be ousted to entertain such a suit. The general principle is that the statute excluding the jurisdiction of the Civil Courts should be construed strictly. However, in the present case, there is no plea raised on behalf of the respondents that the Civil Court is having bar of jurisdiction to entertain the present suit. For this proposition, useful reliance can be made in the matter of Dhruv Green Field Limited v. Hukum Singh reported in : [2002]SUPP1SCR449 .
9. The learned Civil Judge, Senior Division, observed that the remedy to the plaintiff is available for filing of an application under the provisions of Indian Succession Act, 1925. Part X of Indian Succession Act, 1925, deals with the 'Succession Certificates'. The provisions laid down in Section 370 reads thus :
Section 370 : (i) A succession certificate (hereinafter in this Part referred to as a certificate) shall not be granted under this Part with respect to any debt Or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate :
Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letters of administration under this Act.
(2) For the purposes of this Part, 'security' means --
(a) any promissory note, debenture, stock or other security of the Central Government or of a State Government;
(b) any bond debenture, or annuity charged by Act of Parliament (of the United Kingdom) on the revenues of India;
(c) any stock or debenture of, or share in, a company or other incorporated institution;
(d) any debenture or other security for money issued by or on behalf of a local authority
(e) any other security which the (State Government) may, by notification in the Official Gazette, declare to be a security for the purposes of this Part.'
Thus, the grant of succession certificate in fact is restricted and it is provided that a succession certificate shall hot be granted under this Part with respect to any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate. Security is being defined under Sub-section (2) of the said section. The provision laid down under Section 371 of the Act speaks about the jurisdiction to grant succession certificate and Section 372 of the Act provides filing of the application for grant of succession certificate. The procedure which is to be followed by the learned District Judge while granting succession certificate is laid down in Section 373 of the said Act of 1925 which is summary. The contents of the certificate which are to be given by the District Judge are provided under Section 374 of the said Act of 1925. The provision laid down under Section 381 of the Act of 1925 is important, which reads thus :
'Section 381. Subject to the provisions of this Part, the certificate of the District Judge shall, with respect to the debts and securities specified therein, be conclusive as against the persons owing such debts or liable on such securities, and shall, notwithstanding any contravention of Section 370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted.'
It is provided that the Succession Certificate shall be with respect to the debts and securities specified therein, be conclusive as against the persons owing such debts or liable on such securities, and shall, notwithstanding any contravention of Section 370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. It is, therefore, material to note that Section 381 of the Act of 1925, provides the valid discharge, so far as the payment made under the debts and security to the holder of the succession certificate. The person or party making the payment is absolved and getting valid discharge. It is important to note that the persons who are entitled to stake their claims to the amount of debts and securities under the succession certificate, are not made prejudicial by grant of succession certificate. 10. Section 383 of the said Act of 1925, further provides revocation of certificate for the causes which are enumerated in that section. The appeal is provided under Section 384 of the said Act of 1925. The provision laid down under Section 387 of the Act is most important insofar as the rights of the parties are concerned, which reads :
'Section 387. No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto.'
It is clarified by Section 387 of the Act that no decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto.
11. Thus, on examination of the provisions of Part X of this Indian Succession Act, 1925, from Sections 370 to 390, it seem that any decision made under this part upon any question of right between the parties shall not bar the trial of the same question in any suit or other proceedings between the same parties. For this proposition, reliance can be placed to the judgment of the Apex Court in the matter of Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai, reported in : AIR2000SC2301 . The Apex Court in this judgment held thus :
'15. This can be examined from another angle. The grant of Succession Certificate falls under Part X of the aforesaid Act. Its range is between Sections 370 to 390. It is significant to refer here Section 387. This declares the effect of decisions made under this Act and the liability of holder of such certificate. It lays down that any decision made under this Part, (Part X) upon any question of right between the parties shall not bar the trial of the same question in any suit or another proceeding between the same parties. It further records that nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security to account therefor to the person lawfully entitled thereto. Section 387 is quoted hereunder : Section 387 : Effect of decision under this Act, and liability of holder of certificate thereunder:
No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto.' .
18. As far back as in 1937, this principle was upheld and recognised. In Mt. Charjo v. Dina Nath, AIR 1937 Lah 196.
The enquiry in proceedings for grant of succession certificate is to be summary, and the Court, without determining questions of law or fact, which seem to it to be too intricate and difficult for determination, should grant the certificate to the person who appears to have prima facie the best title thereto. In such cases the Court has not to determine definitely and finally as to who has the best right to the estate. All that it is required to do is to hold a summary enquiry into the right to the certificate, with a view, on the one hand, to facilitate the collection of debts due to the deceased and prevent their being time-barred, owing (for instance) to dispute between the heirs inter se as to their preferential right to succession, and, on the other hand, to afford protection to the debtors by appointing a representative of the deceased and authorising him to give a valid discharge for the debt. The grant of a certificate to a person does not give him an absolute right to the debt nor does it bar a regular suit for adjustment of the claims of the heirs inter se.'
12. Apart from this, even if Succession Certificate has been successfully obtained by the party and if the concerned party or person refuses to make the payment, the execution proceedings cannot be filed for execution of the succession certificate granted by the Court under Part X of the Indian Succession Act, 1925. In that circumstances, again the holder of the Succession Certificate has to file a suit on the basis of the said succession certificate and after obtaining decree in that suit, it can be executed.
13. The rights between the parties are not resolved or settled by grant or refusal of the succession certificate. It is the Civil Court ultimately, who can adjudicate the rights of the parties and pass an appropriate decree. In this view of the matter, the learned Civil Judge, Senior Division, Bhandara, erroneously held that the plaintiffs had not applied for the Succession Certificate and therefore, their suit filed is not maintainable.
14. In case of nomination under the policies of Life Insurance Corporation, rights of the nominee is considered by the Apex Court in the matter of Smt. Sarbat Devi and Anr. v. Smt. Usha Devi, reported in : [1984]1SCR992 . The relevant paras are 5 and 12, which are reproduced hereinbelow :
'5. We shall now proceed to analyse the provisions of Section 39 of the Act. The said section provides that a holder of a policy of life insurance on his own life may when effecting the policy or at any time before the policy matures for payment nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death. If the nominee is a minor, the policy holder may appoint any person to receive the money in the event of his death during the minority of the nominee. That means that if the policy-holder is alive when the policy matures for payment, he alone will receive payment of the money due under the policy and not the nominee. Any such nomination may at any time before the policy matures for payment be cancelled or changed, but before such cancellation or change is notified to the insurer if he makes the payment bona fide to the nominee already registered with him, the insurer gets a valid discharge. Such power or cancellation of or effecting a change in the nomination implies that the nominee has no right to the amount during the lifetime of the assured. If the policy is transferred or assigned under Section 38 of the Act, the nomination automatically lapses. If the nominee or where there are nominees more than one all the nominees die before the policy matures for payment the money due under the policy is payable to the heirs or legal representatives or the holder of a success certificate. It is not necessary to refer to Sub-section (7) of Section 39 of the Act here. But the summary of the relevant provisions of Section 39 given above establishes clearly that the policy holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy holder. If that is so, on the death of the policy holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. There is no warrant for the position that Section 39 of the Act operates as a third kind of succession which is styled as a 'statutory testament' in paragraph 16 of the decision of the Delhi High Court in Mrs. Uma Sehgal's case : AIR1982Delhi36 (supra). If Section 39 of the Act is contrasted with Section 38 of the Act which provides for transfer or assignment of the rights under a policy, the tenuous character of the right of a nominee would become more pronounced. It is difficult to hold that Section 39 of the Act was intended to act as a third mode of succession provided by the statute. The provision in Sub-section (6) of Section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees. We have to bear in mind here the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules governing the testamentary succession is not relaxed even where Wills are registered.
'12. Moreover, there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under Section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet Parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view. The reasons given by the Delhi High Court are unconvincing. We, therefore, hold that the judgments of the Delhi High Court in Fauja Singh's case AIR 1978 Delhi 276 (supra) and in Mrs. Uma Sehgal's case : AIR1982Delhi36 (supra) do not lay down the law correctly. They are, therefore, overruled. We approve the views expressed by the other High Courts on the meaning of Section 39 of the
Act and hold that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.'
15. Thus, in this view of the matter, the learned Civil Judge, Senior Division, Bhandara, is not justified in holding that the suit filed by the plaintiffs is not maintainable and they are required to file an application for obtaining Succession Certificate. The learned Civil Judge, Senior Division, Bhandara, has to consider the case of the parties and if required, recast the issues in accordance with the pleadings and the provisions of law. The learned Civil Judge, Senior Division, Bhandara, shall give the opportunity to the parties for additional pleadings and/or leading evidence, if necessary, and thereafter shall decide the suit filed by the original plaintiffs according to law. Finding on the point is recorded accordingly.
16. In this view of the matter, the judgment and decree passed by the learned Civil Judge, Senior Division, Bhandara, is quashed and set aside. The matter is remanded back to the Civil Judge, Senior Division, Bhandara, with a direction that the learned Civil Judge, Senior Division, Bhandara, shall decide this suit in accordance with law, after giving due opportunity to all the parties concerned, preferably within a period of six months from the date of receipt of this judgment.
17. The First Appeal is thus partly allowed and disposed of accordingly. No order as to costs.